2016: The Year That LGBT Progress Ended?

The internet consensus seems to be that 2016 was a pretty terrible year, between Trump, Brexit, and all the other great people we lost. 2016 also turned out to be a pretty uneven year for global LGBTQ rights, with some big victories coming in the first half of the year, and the beginning of an unprecedented global backlash shaping up on the back half of the year.

For the last few years, I’ve posted about the global progress on equal marriage rights, but 2016 didn’t deliver many big gains on that file. So this year, I’m taking a bit of an expansive view on LGBT issues. The global same-sex marriage population chart is at the bottom of this post. Don’t forget to follow me on Twitter @LGBTMarriage for updates throughout the year.

(All maps below come from Wikipedia commons, and have been crudely edited by me in Paint.)

AMERICAS

UNITED STATES: The big story of the year was of course the US election. Had everything gone as foreseen, we might all be talking about how the coming Clinton presidency would inspire an enormous expansion of LGBT rights both in the US and abroad through US diplomacy. As things are now, we’re looking at holding back the damage of a Trump presidency with a Republican Congress, a likely conservative Court, and Republican dominance of most states. Already, Republicans are renewing pushes for license-to-discriminate bills and we’re seeing rollbacks on adoption rights at the state levels. Trump says same-sex marriage is a settled issue, however, there is already a push to restrict marriage rights in red states.

On the marriage equality file, several US Indian Nations expanded access to same-sex marriage – notably the Cherokee Nation in December. Equal marriage remains the law in all 50 states and 4 of the 5 territories. American Samoa still does not allow same-sex marriage, and a Supreme Court judgement confirmed that the equal protection clause of the constitution and the Obergfell decision do not apply there.

CANADA: By contrast, the Trudeau government has made big progress on LGBT issues in its first year in office. From a federal trans rights law, to finally erasing the remaining sodomy statue, to proposals to eliminate the gay blood donor ban, expand reproductive rights, and decriminalize HIV transmission, Canada’s federal government is showing real leadership. And it’s rubbing off at the provincial level, with trans rights bill passed in BC and Quebec, and proposed in Nunavut and Yukon. New Brunswick will soon be the lone holdout province without an explicit trans rights law, and whichrequires surgery to change legal gender.

BLUE: Full marriage equality. LIGHT/DARKBEIGE:Marriage granted by amparo process. GREEN:States where Supreme Court may rule on marriage equality in 2017.

MEXICO: Progress toward full marriage equality was going well in Mexico, with state legislatures passing equal marriage laws in Campeche, Colima, Morelos, and Michoacán, which brought the total to 9/31 states or 29% of the country living in equal marriage jurisdictions. Every other state also had a proposal on the books to legislate for marriage equality. Then on May 17, the deeply unpopular president Enrique Nieto proposed a constitutional amendment to secure marriage equality and a suite of other LGBT rights in the states that were moving slower. This sparked a backlash and mobilized the country’s religious Evangelicals and Catholics against the government. Nieto’s party suffered unprecedented losses in state-level elections, and legislative progress on same-sex marriage stopped everywhere. The courts are still regularly granting injunctions for same-sex marriages in all states, and the Supreme Court has reiterated its support for same-sex marriage repeatedly this year. It recently struck down the same-sex marriage ban in Sinaloa, and equal marriage will become the law there soon.

Additionally, Chiapas, Puebla, and Tlaxcala states passed amendments to their marriage laws that triggered unconstitutionality appeals to the Supreme Court. In these states, the court may force marriage equality in 2017. Rex Wockner has a good explanation of the situation there on his blog.

COLOMBIA: The biggest victory for the equal marriage movement this year came in Colombia, where the Supreme Court finally handed down a long-awaited judgement legalizing same-sex marriage in April. The decision was not popular, although it was supported by the president. One aspect of the global backlash against LGBT people came in October, when the country narrowly rejected a referendum on a proposed peace deal to end the country’s 50-year civil war, in part over language in the deal that confirmed equal marriage. A revised peace deal was later ratified by the Congress.

Incidentally, there were stories this year that for the first time 1 billion people lived in equal marriage jurisdictions, following the legalization in Colombia. Regular readers will remember I called this milestone out on last year’s blog – that’s because I’ve always counted all of Mexico as an equal marriage jurisdiction, because all Mexican states and the federal government recognize each other’s marriages.

PERU: After a civil union bill died in Congress last year, this year’s presidential election featured much discussion of LGBT rights. The eventual winner, Pedro Pablo Kuczynski, supported civil unions, and his party has introduced a civil union bill to Congress. The bill does not provide all the rights of marriage; notably, adoption rights are not included.

CHILE: Chilean President Michele Bachelet announced plans to legalize same-sex marriage and couple adoption in 2017, following the settlement of a case that was brought before the Inter-American Court of Human Rights. This follows the legalization of civil unions last year.

VENEZUELA: The opposition introduced a civil union bill. Meanwhile, the Supreme Court heard several cases for same-sex marriage. In one case, the court found that the definition of marriage as heterosexual in the Civil Code was unconstitutional, but change relies on the National Assembly. In another, the court ruled that same-sex parents who married out-of-country must have their families recognized by the state. Additional cases demanding marriage equality are before the court.

COSTA RICA, PANAMA, EL SAVADOR: The Supreme Courts of Costa Rica, Panama and El Salvador are all hearing same-sex marriage cases in 2017. In Costa Rica, where the government offers limited recognition of same-sex couples, the opposition Citizens’ Action Party is planning to include same-sex marriage in its 2018 election platform. The social security system also expanded pension benefits for widows of same-sex partners this year.

GUATEMALA: An opposition legislator, who happens to be country’s first LGBT member of Congress, introduced a same-sex marriage bill at the end of December. The President is notoriously anti-LGBT, so long odds on this passing.

THE BAHAMAS, GRENADA: Both Grenada and The Bahamas held referendums that would codify gender equality in their constitutions. Both were rejected by voters, in part over fears they would lead to same-sex marriage.

BELIZE: The Supreme Court of Belize finally, after three years of deliberation, issued a sweeping judgement striking down the country’s sodomy ban as unconstitutional, and reading “sexual orientation” into its constitution’s ban on discrimination based on “sex.” The government is appealing the latter part of the decision. Some observers believe that the judgement will set a non-binding precedent on the other 10 former UK colonies in the Caribbean that criminalize sodomy.

On a related note, the Caribbean Court of Justice dismissed a case challenging Belize and TRINIDAD & TOBAGO’s ban on homosexuals from entering their countries. The CCJ found that the statutes, while discriminatory, were never applied, and thus did not need to be struck down. Technically, the judgement only requires the two countries not to ban homosexual CARICOM nationals; the ban still stands for homosexuals from other countries.

There was some talk that some of the Caribbean states would revisit their sodomy bans, but as per usual no actions materialized. ANTIGUA & BARBUDA had discussed decriminalization, but the government changed its mind. A Jamaican lawyer is challenging JAMAICA’s sodomy ban before the court.

British, Dutch and Danish territories in the Americas are discussed below.

EUROPE:

UK: The UK’s narrow vote to leave the European Union may be the most significant event of the year for LGBT rights in Europe. The decision hobbles one of the world’s preeminent advocates for LGBT rights, and was part of a global trend toward right-wing, populist, anti-minority politics, and is also part of a trend of destabilizing the EU. We shall see its affects over the next few years.

But more immediately, we saw Northern Ireland reelect a legislature led by the anti-LGBT DUP and a Premier who has vowed to block marriage equality through the end of her term in 2019. The DUP is using a peace-process power that essentially gives them a veto over decisions made by the legislature. Equal marriage enjoys the support of a majority of MLAs, and around 3/4 of the population by some polls. Two equal marriage cases that were before the courts last year still have not been resolved.

Progress was made in many other UK territories as well. Same-sex marriage was legalized in the Crown Dependencies of The Isle of Man and Guernsey, although Guernsey’s law does not apply to its own dependencies, Alderney and Sark (although Alderney recognizes foreign same-sex marriages for inheritance purposes). The other Crown Dependency, Jersey, is expected to pass an equal marriage law in January 2017.

Gibraltar passed an equal marriage law that came into force in December 2016.

Bermuda was the site of big drama around same-sex marriage in 2016. Although the Court had already granted same-sex couples adoption rights in 2015, couples had no option to have their relationships recognized. The government hastily called a referendum asking if the people approved of same-sex marriage and if they approved of same-sex civil unions. Both questions returned 2/3 majorities opposed. The Supreme Court, which was sharply critical of the referendum plan but allowed it to proceed, is now hearing a challenge from a Bermudian-Canadian couple asking for equal marriage.

The Cayman Islands Immigration Appeals Tribunal found that same-sex couples must be recognized for immigration purposes. Marriage and civil unions remain opposed by the government, and are hot-button issues.

The Falkland Islands still intends to legalize same-sex marriage, but its government’s legal department is having delays preparing legislation. It may appear in late 2017.

It belatedly became apparent this year that the UK Sovereign Base Areas of Akrotiri and Dhekelia on Cyprus had a same-sex marriage ordinance passed by the UK in 2014, when the first same-sex marriage on the island got press attention. The ordinance applies only to UK military personnel and staff, who also have access to civil partnerships since 2005.

The UK government also passed an ordinance for marriage equality in the British Antarctic Territory. As civil law is mostly suspended in Antarctica, and the UK Antarctic claim is entirely overlapped by competing Chilean and Argentinian claims, it’s unclear how this law applies. The seven nations making claims on Antarctica – UK, France, Australia, New Zealand, Chile, Argentina, and Norway – do not have their claims recognized by most countries. Although all of them recognize marriage equality or are planning to soon (we’ll get to Australia in a bit), Antarctica will never be a continent that entirely recognizes marriage equality because a big chunk of it is not claimed by any country.

Acension Island, part of the St Helena, Ascension, and Tristan da Cunha territory, passed an equal marriage law this year, but it will not come into force until St. Helena’s proposed law passes [CORRECTION: And it came into force Jan 1, 2017]. In December, the St. Helena government withdrew its same-sex marriage bill after some legislators opposed it.

It is believed by someone on Wikipedia that the UK government is also planning to draft equal marriage ordinances for its other uninhabited territories, South Georgia and the South Sandwich Islands and British Indian Ocean Territory. The UK Government web site for SGSSI claims that a general review of its legislation is underway.

Same-sex marriage remains illegal in Turks & Caicos Islands, Montserrat, Anguilla, and the British Virgin Islands, but was legalized in Pitcairn Islands in 2015.

DENMARK: Although Denmark proper passed an equal marriage law in 2012, the two other countries that make up the Kingdom of Denmark had their laws come in more recently. Greenland’s equal marriage law passed last year, but it only received royal assent and came into force this year. The Faroe Islands passed an equal marriage law in May, but the Danish Parliament delayed ratifying the bill because the Faroese legislators had written the number “7” where they were meant to write “VII.” Yes, actually. The Faroese Parliament voted on a revised draft in late December, and it has been sent back to the Danish Parliament for ratification and royal assent. When granted, all Scandinavian countries will have equal marriage laws on the books.

ITALY: After years of attempts, Parliament passed a watered-down civil union bill that does not include adoption rights at all. The Prime Minister had vowed to take up adoption rights in a separate bill, but he resigned in December after his proposed constitutional amendments were voted down in a referendum, again as part of the populist backlash rising across Europe. However, the Supreme Court of Cassation confirmed that step-child adoption is allowed even without specific legislation. Italy will have elections sometime in the Spring for a new government.

NETHERLANDS: Although it was the first country to legalize same-sex marriage, the law does not apply to its Caribbean countries. This year the Aruba Parliament finally passed a civil union law. It is the first Caribbean country to recognize same-sex marriages on its own, without requirement from a European or American parent country (although all are required to do so under the European Charter of Human Rights). There has been no activity on the file in Sint Maarten or Curaçao.

PORTUGAL: Portugal’s equal marriage law passed in 2010, but it did not include adoption rights. The Parliament corrected that this year.

SWITZERLAND: Swiss voters narrowly rejected a referendum that would have defined marriage as heterosexual in February, and then again when the issue was put to citizens of Zurich in November. It is expected that same-sex marriage will be brought to referendum in 2017, along with a question on whether registered partnerships should be given the same access to facilitated naturalization as couples in marriages. The Parliament also legalized step-child adoption, and made registered partnerships open to straight couples this year.

AUSTRIA: Courts rejected appeals for same-sex marriage, although a final case is before the Constitutional Court. Same-sex marriage remains an active political issue, and although the governing coalition is refusing to act, the junior partner Socialists are in favor. A citizen’s initiative on the issue remains active. Meanwhile, the Parliament amended laws around civil partnerships to make them more similar to marriages, and a court ruling for joint adoption rights took effect on Jan 1, 2016. The country elected an independent former Green Party leader who supports same-sex marriage to the presidency this year.

SLOVENIA: After its same-sex marriage law was voted down in referendum last year, the Parliament voted to expand its civil partnership law to make it equal to marriage except in regards to adoption and in vitro fertilization. The law passed and will come into effect in February. By an earlier court ruling, step-child adoption is permitted in Slovenia.

SAN MARINO: The tiny enclave inside Italy debated a civil union law when Italy passed its own law, but the government didn’t pass it before the elections in November. The winning United Left party pledged to pass a civil union law and also supports adoption rights.

MONACO: The Monegasque National Council unanimously passed a motion for civil unions modelled on France’s PACS, but the tiny country’s government is still mostly controlled by the Catholic Prince and his unelected Executive. The Executive has six months to decide whether it will proceed with a civil union law, and then another year to draft and pass it. We’ll see whether anything comes of it.

Monaco and San Marino are the only territories in Western Europe without any recognition for same-sex relationships (aside from territories like the Faroe Islands, whose law is pending).

ESTONIA: A civil union law came into force on Jan 1, although a new right-wing government has so far refused to pass the implementing laws and regulations to make it effective. Estonia is the first post-Soviet country to recognize same-sex unions.

FINLAND: Conservative forces in the country tried unsuccessfully to beat back the country’s same-sex marriage law, passed in 2014, which comes into effect in March 2017. In the meantime, the new conservative government managed to pass two laws that will implement the same-sex marriage decision.

CZECHIA: The government of the country formerly officially known as the Czech Republic introduced a bill to allow step-child adoption in October. It is still before the Parliament.

GERMANY: The Social Democrats, the junior partner in the coalition government, have become more outspoken about LGBT issues and same-sex marriage in the run-up to next year’s elections. At the same time, Angela Merkel’s Christian Democrats have become afraid that veering too left on social issues will lead voters to abandon them for the far-right Alternative for Germany party. The September 2017 elections will be interesting to watch.

FRANCE: The deeply unpopular Socialist President who introduced same-sex marriage in 2013 will not be running for reelection and polls indicate he has tanked his party. Polls and primaries suggest next year’s presidential election will be between the racist Euro-skeptic National Front leader Marine LePen and Republican (conservative) candidate Francois Fillon, who is running on an austerity platform and wants to scrap same-sex couple adoption rights. Anything can happen before next year’s election, held in two rounds in April and May, and some progressives are already mobilizing behind a third independent candidate Emmanuel Macron.

(NORTH) CYPRUS: Talks aimed at finally reunifying the country after more than 40 years are starting to bear fruit and many suspect the island could reunify next year. If that happens, it is presumed that Cyprus’ civil partnership law would apply to the Turkish North for the first time. North Cyprus would also fall under the auspices of EU Law and the European Convention on Human Rights, which have been supportive of LGBT families.

ROMANIA: A case seeking approval for same-sex marriage has dragged on, although at the last hearing it was announced that the Supreme Court will be consulting with the European Court of Human Rights in drafting its opinion next year. The ECHR does not generally require equal marriage under the convention, but does require states to provide some kind of civil union. Meanwhile, despite calls for tolerance from the president, legislators are planning a constitutional amendment to ban same-sex marriage, which is currently gender neutral in the constitution but heterosexual in law.

TAIWAN: Voters elected a pro-marriage equality President and legislature in January, and lawmakers are working on Asia’s first same-sex marriage law. It is expected to pass in mid-2017.

Meanwhile, in CHINA and Hong Kong, equal marriage cases were lost before the courts, although appeals are expected in 2017.

NEPAL: After years of attempts and court orders, the government began work on a draft bill for same-sex marriage in October. Nepal could very likely be the second country in Asia to legalize same-sex marriage, although this is still likely years off. 2017 will mark a decade since the Nepal Supreme Court first ordered the government to introduce same-sex marriage.

AUSTRALIA: Voters very narrowly returned the Liberal-National coalition to government, after they proposed a non-binding plebiscite on same-sex marriage. The plebiscite was killed by the Senate after organized opposition by LGBT activists and the Labor Party. Activists are pushing for a free vote in Parliament, and it’s unclear how this will shake down over the next year in a particularly fractious political climate. I’d put even money on the government relenting on a free vote in 2017.

Meanwhile, progress continued at the state level. South Australia passed a civil partnership law and began recognizing overseas marriages, bringing the total to 5/7 states and territories comprising 80% of the population that do so. South Australia, Victoria, and Queensland all passed LGBT couple adoption laws, and one has been proposed in the Northern Territory – if passed, all LGBT Australians will have access to joint adoption. South Australia also passed an omnibus bill that removed gender bias and relationship discrimination from all statutes, and it is in the midst of a debate on reproductive rights for LGBT couples.

NAURU: Nauru decriminalized homosexuality in a general update of its colonial-era penal code. The update also removed the death penalty. The issue was likely brought to the fore by bad international press which spotlighted the plight of LGBTQ refugees who were sent to the island by Australia, and continue to be stranded there.

ISRAEL: The government announced it is equalizing the immigration process for same-sex couples and married straight couples.

PHILIPPINES: After electing its first transgender lawmaker, the Philippines is set to have a debate on LGBT civil unions and an anti-discrimination law next year. Current President Duterte may be a thug, but he’s generally been positive about LGBT rights, so this may actually come to pass.

JAPAN: The movement for relationship recognition gained steam in 2016 as three cities created relationship registries for same-sex couples: Mie, Takarazuka, and Naha, joining Tokyo’s Shebuya and Setagaya wards that did so in 2015. Sapporo, Chiba, and Yokohama are also considering creating registries. While the registries have no legal force, they are reportedly helpful with establishing relationships for hospital visits and other needs. There have been rallies and campaigns for full marriage equality in Japan, and the government has said it is considering measures to improve LGBT rights ahead of the 2020 Tokyo Olympics.

KYRGYZSTAN: Voters ratified a new constitution that bans same-sex marriage.

SEYCHELLES: The tiny island nation decriminalized homosexuality after a few years of pressure from the UN.

CHAD: The much larger Saharan country criminalized homosexuality for the first time, although it is only classified as a misdemeanor and the only penalty is a fine.

MALAWI: The country continues to debate decriminalizing homosexuality.

MAURITIUS: Mauritius is one of those weird countries that maintains a criminal charge against sodomy (gender-neutral), but bans discrimination against LGBT people. It has considered UN requests to remove the sodomy law but has not done so. An LGBT youth group has filed suit against the government to legalize same-sex marriage in 2015; it is still unresolved.

THE GAMBIA: Voters ousted President Jammeh, a brutal anti-LGBT thug, in a democratic election that Jammeh at first conceded but is now challenging. The recognized winner of the election has pledged to rejoin international bodies like the International Criminal Court and the Commonwealth, and to respect human rights, although his stance on LGBT issues is unknown.

NIGERIA: In a bizarre turn, several reports have emerged that the government is considering amending the constitution to allow same-sex marriage, despite the fact that homosexuality is still illegal in the country, with the death penalty imposed in several states.

POPULATIONS OF STATES WITH EQUAL MARRIAGE

United States (including Puerto Rico, Guam, Northern Mariana Islands, and the US Virgin Islands)

Total population of countries that currently recognize same-sex marriages/civil unions: 1,371,767,286

Total population of countries that are considering same-sex marriages/civil unions: 540,066,426

Total population of countries that either have same-sex marriage/civil unions, or are considering legalizing them (not double-counting states that have civil union and are considering equal marriage): 1,769,374,983

Number of countries with full same-sex marriage: 21, plus most of the UK, ~6 UK territories, 4 US territories, and 2 Danish countries.

Number of countries with civil unions: 17, plus Northern Ireland, Jersey, and Aruba.